While a juvenile, he was arrested multiple times and was placed on probation before he was eighteen. Within months after turning eighteen, he was convicted of first degree burglary and placed on probation. Within the next two years, he was convicted two more times for theft-related crimes. One was first degree burglary again and he was again placed on probation.

The second of the two offenses, in 1997, was petty theft with a prior. Kim was sentenced to three years in state prison.

Kim then served approximately two years of the three year sentence and was released. He was then placed on three years of parole. The Department of Homeland Security (then named the INS), initiated deportation proceedings in 2002.

Kim filed numerous challenges to his multiple convictions. Each challenge failed to eliminate a basis for deportation.

In 2011, he again attacked his 1997 petty theft conviction, by way of an “invitation” that the court dismiss the judgment of conviction under Penal Code § 1385. It merits mention parenthetically that only prosecutor can move to dismiss a case under section 1385. Thus, a defendant must instead “invite” the judge to exercise his discretion under 1385 to dismiss the case.

Kim’s “invitation” to the court was based on an argument of ineffective assistance of counsel. Kim argued that his attorney failed to advise him of the immigration consequences of his plea. The trial court granted the motion.

The prosecution appealed to the Sixth District Court of Appeal. The prosecution argued that 1385 could not be used to attack a conviction. Penal Code § 1385 can only be used to dismiss a pending case. Kim’s case had proceeded to judgment twelve years earlier. Moreover, once a defendant begins serving a sentence, the court loses jurisdiction over the matter.

Second, the prosecution argued that Mr. Kim signed an agreement pursuant to the plea that acknowledged, “I understand that if I am not a citizen of the United States, a plea of guilty or no contest could result in deportation, exclusion from admission to this country and / or denial of naturalization.” Consequently, Kim’s argument of ineffective assistance of counsel was waived when he signed the form acknowledging such an immigration consequence.

The prosecution also argued that Mr. Kim had failed to exercise reasonable diligence in challenging the conviction due to the immigration consequences, because deportation proceedings began in 2002, nine years earlier. Moreover, the challenge was barred because its sole purpose was to avoid deportation. People v. Mendoza (2009) 171 Cal. App. 4th 1142, 1159. Lastly, the dismissal would not serve “the interests of justice “given Mr. Kim’s lengthy criminal history. Rather, the interests of justice would be to leave the conviction on the record with its attendant consequences.

The Sixth Appellate District, in People v. Hyung Joan Kim (2012 DJDAR 16957), agreed with the prosecution on the prosecutor’s first argument only, reversing the trial court. The appellate court noted that Penal Code § 1385 “has never been held to authorize dismissal of an action after the imposition of a sentence and rendition of judgment.“ People v. Barraza (1994) 30 Cal.App. 4th 114, 121, fn. 8. Therefore, the trial court had no authority to dismiss the action under Penal Code § 1385.

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